REPUBLIC VRS WONORA (UE/ NA /DC /B4/4/2023) [2024] GHADC 509 (20 May 2024)

IN THE DISTRICT COURT HELD AT NAVRONGO IN THE UPPER EAST REGION ON MONDAY THE 20TH DAY OF MAY, 2024 BEFORE HIS WORSHIP FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) SUIT NO.UE/ NA /DC /B4/4/2023 THE REPUBLIC VRS LEWIS KOWJE WONORA JUDGMENT [1]The Accused was charged with assault and causing unlawful damage contrary to section 84 and 172 (1) (b) respectively of the Criminal Offences Act 1960 (Act 29). He was arraigned before the court on 5th January, 2023 and he pleaded not guilty. [2]The facts are that PW1 and Accused are Pito seller and unemployed respectively. They live at Konwania Navrongo. PW1 is the wife of Accused’s brother. On 17th October, 2022 there was quarrel between PW1 and Accused over a fight between one Moses and one Jimmy. In the course of the quarrel Accused’s hand hit the lips of PW1 and got her injured she attended hospital as a result and was treated. [3]The case of Prosecution is contained in the evidence in chief of PW1, PW3 and PW4. PW2 could not testify due of his unwillingness to do so. According to PW1, on 17th October, 2022 she brought her Pito outside to sell. She saw Jimmy and Moses fighting. She told them to stop the fight so that they will not pour her pito away. Accused who was witnessing the fight became angry at PW1 as to why she asked Jimmy and Moses to stop fighting. Accused started insulting PW1 so she also exchanged words with him. 1 Accused slapped PW1 and start to beat her. She sustained deep cut on her lower lip. Accused then kicked the pito container and it broke. [4]PW3 stated that he knows Accused as well as PW1. He lives at the same area where PW1 sells Pito. He sold his dog to Jimmy and Jimmy refused to pay. On 17th October, 2022 at about 10:30am he met Jimmy at PW1’s Pito base and demanded for his money. Jimmy removed the money from his pocket but did not give it to him so he quarreled with him and people separated them. He was going home when Accused called him to come back and fight with Jimmy. PW1 told accused that he did not speak well and asked him why he should force him to go and fight. Accused then slapped PW1 and started beating her. [5]PW4 also stated that on 17th October, 2022 PW1 reported case of assault and causing unlawful damage and the case was referred to him for investigation, which revealed all that PW1 had said. PW1 had deep cut on her lower lip and swollen face. So medical form was issued to her. She attended hospital and brought the medical form which was duly endorsed by medical superintendent. He tendered exhibits A, B, C and D being the caution statement of Accused, charge statement of accused, medical form and the Photograph of the broken container respectively. [6]The defence of accused in the dock is that on the day of incident he was sitting at his brothers drinking spot. He heard “stop” “stop”. He saw one Jimmy and Moses fighting. He quickly rushed there and separated the fight. He realized that Moses sold his dog to Jimmy. Jimmy made part payment and was then coming to make full payment. This brought the fight between the two. When he was holding Jimmy he told Moses to go away from the place. Moses moved away so he left Jimmy. He told Moses that he is his son. He asked Moses whether he knew that Jimmy’s son is older than him. According to Accused, he did not do anything thereafter. He did not fight PW1 and any other person. PW1 forged allegations to put him in trouble. 2 [7]DW1 stated that he bought a dog from one Moses and had agreement with him that he would pay the money when he sold the meat. He made part payment. When he finished selling in the evening he sent the money to PW1 because Moses usually sit at PW1’s selling place. He could not meet Moses. The next day he went to PW1’s place and as well called Moses and he came. He questioned Moses as to whether he was qualified to be his father because Moses was insulting him. He removed the balance and was about to hand it over to Moses when Moses slapped him and the money fell. Accused came from his senior brother’s shop and asked why Moses slapped him since he brought the money. PW1 also came and asked accused as to why he was asking the question. And that was accused present when he bought the dog. Accused answer to PW1’s question was that even if he was not present it was not right for Moses to slap an old man like him. He separated PW1 and accused and told them it was work of Satan. He then bought Pito for himself and one Onswell and left for his house thereafter. If PW1 and accused fought he is not aware. [8]DW2 also stated that PW1 is the wife of accused senior brother. PW1 sells Pito under Baobab tree. All the people of Nayagnia and Kowania go to her joint to drink Pito. He did not know what happened and the matter got to Court. [9]DW3 was called but he failed to appear. [10]Prosecutions duty in this case is to prove all elements in the offences for which accused was brought before Court. It must prove so beyond reasonable doubt. See Section 11 (2) of the Evidence Act 1975 (NRCD 323). [11]In Kugblenu v The Republic [1969] CC 160 CA Ollenu JA noted “It is trite law that the onus upon the prosecution is to prove their case beyond all reasonable doubt. This applies to all material issues and matters which form the pivot of the case of the prosecution or the pillars or foundation of the case upon which the case rests. If the 3 prosecution leads evidence which creates uncertainty, they have failed and the accused should acquitted”. [12]In Richard Kwabena Asiamah v the Republic [2019] JELR 67945 CA it was noted that under section 13(1) of the Evidence Act, 1975 NRCD 323 and Article 19(2)(c) of the 1992 constitution, a criminal offence requires proof beyond a reasonable doubt. The burden is on prosecution to prove all the ingredients of the offence charged. Failure to discharge this duty shall lead to the acquittal and discharge of the accused person. However, when this duty is discharged and a prima facie case is made, then an accused person may have to give an answer or explanation which raises a reasonable doubt as to his guilt. See Section 11(3) of the evidence Act 1975 (NRCD 323). [13]To prove assault, Prosecution must first identify the kind of assault it was dealing with. Section 84 of the Criminal Offences Act 1960 (Act 29) provides for kinds of assault as assault and battery, assault without actual battery and imprisonment. [14]From the facts of this case Prosecution’s burden is to prove assault and battery. Under this head, prosecution must prove lack of consent, intention to cause harm, pain or fear or annoyance and forcible touch on PW1. Section 86 (1) of the Criminal Offences Act 1960 (Act 29) provides “ A person makes an assault and battery on another person if without the other persons consent, and with the intention of causing harm, pain or fear, or annoyance the other person or of exciting the other person to anger, that person forcibly touches the other person”. [15]In Comfort v The Republic [1974] 2 GLR 1 at pages 3-4 Osei Hwere J (as he then was) noted: “By Section 86(1) of the Criminal Code, 1960 (Act 29) a person commits an assault and battery when, essentially, there does not exist the other person’s consent. Consent therefore, generally negatives any offence of assault. I “say generally” because 4 I concede that victim’s consent cannot be a defence for an assault if the blows inflicted are, in the opinion of the Court likely to cause bodily harm. “Bodily harm” of Course, includes, any hurt or injury calculated to interfere with the health or comfort of the victim and although it need not be permanent, it must be more than merely transient and trifling.” [16]PW1 alleged that Accused slapped and beat her. This was corroborated by the evidence of PW3. Cross examination of PW1 and PW3 further show that PW3 was present and witnessed what transpired. Cross examination of PW1 by Accused is as follows: Q.Was I present at the time Jimmy and Moses were fighting? A.Yes Q.You swore with the bible that I beat you, did I beat you. A.You beat me. You hit my eyes and my mouth and I went to War Memorial Hospital. Yes. Q.Was Vincent Songoti present at the scene? A.Yes. He came at the time you were causing damage to the pito container. Q.Was there any person apart from myself, Vincent and PW1. A.There were a lot of people present on that day. Cross examination PW3 is as follows:- Q.Can you mention those who were there on that day? A.Yes. John, Kopa and several others that I cannot mention. Q.Was Vincent Songoti there, or rushed there or not there at all? 5 A.Vincent Songoti rushed there. [17]Apart from the similarities in the cross examination of PW1 and PW3, PW4 tendered without objection, Exhibits A and C which are the caution statement of Accused and the medical report. Exhibit A shows that accused had bodily contact with PW1. In exhibit ‘A’ accused stated among other things “Complaint became offended and started insulting me that I should leave them to fight. I also started insulting complainant. I and complainant insulted ourselves to a certain level and complainant tried to throw me stone and in the process of swerving the stone my hands touched her lips and complainant had a cut under her lips. [18]What is intriguing was accused statement to the Court that after he separated Moses and Jimmy he left the scene. He has forgotten that he made some statement in exhibit A which when taken together with other evidence of Prosecution proves his culpability. [19]It can be seen that exhibit A is not a confession to committing the offence. Accused rather tried to show that he mistakenly hit the lips of PW1. He could not do so successfully because apart from his retarliatary insults on PW1, he failed to raise doubt as to his guilt regarding assault either by himself or his witnesses. It is therefore my opinion that prosecution’s evidence regarding the assault was well made. [20]On the issue of causing unlawful damage, prosecution ought to prove that damage has been caused to property; that the damage was intentionally caused to property; that damage was caused unlawfully and that the damage was caused by accused. [21]In Homenya v The Republic [1992] 2 GLR 305 at page 312 Acquah J (as he then was) stated “The prosecution’s case is that the appellants had caused unlawful damage to the apple trees of the first prosecution witness. Section 172 (1) of Act 29 which creates the offence of unlawful damage requires that for a person to be liable under the said section, the accused must have caused the damage intentionally and unlawfully. The 6 section reads: “Whoever intentionally and unlawfully causes damage to any property by any means… “Each of the two words emphasized above is important and must be established before one can be called upon to open his defence in respect of this offence. For if the damage was intentionally but not unlawfully caused, the offence is not committed. Likewise if the damage was unlawfully but not intentionally caused, then it is not one of unlawful damage”. [22]In Asante v The Republic [1972] 2 GLR 177 at page 195 Anterkyi J noted “But the next point to be determined was whether the damage, thus “intentionally” caused, was also “unlawfully” caused? Within the provisions of section 174 (1), with regard to causing an event unlawfully, it is essential that the conduct of the actor should be capable of landing him in civil liability. Tersely, to secure under section 172 of Act 29, not only must it be proved that the damage was caused intentionally within the provisions relating to intent in section 11 of Act 29, but also it must be proved beyond reasonable doubt that it was caused without just cause or excuse; the burden lay on prosecution to prove conclusively, the absence of any legal justification or excuse…” [23]Applying the principles to this case, it could be observed that PW1’s evidence that accused kicked her rubber container and it got damaged is supported by exhibit ‘D’. Exhibit D shows that the edge of the container got cut. The evidence of PW1 was corroborated by PW4 who tendered exhibit D, the Court saw it believable that it was accused who caused the damage. This is because Accused did not say anything in rebuttal of PW1’s evidence concerning the pito container. Accused’s silence on exhibit D in his caution statement and statement to Court suggest nothing more that the genuine credibility of PW1. [24]There is no doubt that Accused kicked the bucket in the heat of his anger. In cross examination of PW4 by accused, the only question he asked touching on exhibit D was as follows:- 7 Q. In the course of your investigation, did you come across exhibit D. A. Yes Q. Where did you see exhibit D. A. In the house of PW1 when Police went to the scene. [25]The witnesses of accused did not see what actually transpired between PW1 and accused, so could not help him. The evidence of DW1 and DW2 do not touch on the issues. Cross examination of DW1 by Prosecution shows that he did not witness what happened as follows:- Q. You indicated in your evidence in chief that there was argument between Accused and PW1. Is that correct? A. Yes Q. I put it to you that on the 17th day of October, 2022 accused person did assault PW1 unlawfully. A.I did not see that. May be that happened after I had left. Q. I put it to you that on 17th day of October, 2022 accused person did intentionally and unlawfully caused damage to PW1’S rubber container. A. I was not there. Q. Will you agree with me that at the time accused assaulted PW1 and caused damage to the rubber container you were not there. A. That is correct. Q.I finally put it to you that you never witness anything is respect of this case. A. What I have seen is what I have told Court. After I drank the pito I left for my house. 8 DW2 was cross examined as follows:- Q. Were you there when accused and PW1 had issue? A. I was at the house but not at the pito base. Q. So because of that you did not see what actually happened between accused and PW1. A. That is so. [26]Accused could not raise the doubt required of him either by himself or by his witnesses. It is for this reason that I prefer the evidence of prosecution as against accused’s bare denial of same. I therefore hold the view that accused caused damage to PW1’s pito container intentionally and unlawfully by kicking it. [27]On the totality of evidence before me I find as a fact that prosecution discharged its burden of proving this case beyond reasonable doubt. It shows through unrebuted evidence that there was injury to PW1’s lips, caused by forcible contact of the body of accused with PW1 without her consent. It also shows without question that the upper part of the pito container was broken by accused. [28]Accused is therefore found guilty of counts one and two and convicted accordingly. [29]Since accused has decided to waste the time of this Court, there will be no need to deal with him leniently. However, he is remorseful, He is first time offender. PWI is his own brother’s wife. I have decided to be lenient because of the family relationship of accused and PW1. [30]In the light of the foregoing, accused is sentenced to pay a fine of 40 penalty units on count one or imprisonment for two months IHL. On count two he is sentenced to pay a fine of 60 penalty units or serve a prison term of three months IHL. The sentences are to run consecutively. He is ordered to compensate PW1with GH¢350.00 for her medical 9 expenses. He is again ordered to replace the damaged pito container and pay for the pito which poured onto the ground. (SGD.) H/W FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) REPRESENTATION 1. Chief Inspector Emmanuel Darko Nimako fo prosecution. 2. No legal representation for Accused person. 10